Babu @ D.K.B.Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **CRL.A NO. 657 OF 2006** **AGAINST THE JUDGMENT DATED 06.03.2006 IN SC NO.151 OF 2003 OF III ADDITIONAL DISTRICT COURT, KOLLAM.** ## **APPELLANT/3RD ACCUSED:** **BABU @ D.K.B.BABU S/O. BALAKRISHNAN, PRASANTHI BHAVANAM, K.S.E.B. OFFICE (NORTH), MADAN NADA,, VADAKKEVILA CHERRI, VADAKKEVILA VILLAGE. BY ADVS. DR.K.P.SATHEESAN SRI.M.R.JAYAPRASAD** ## **RESPONDENTS/STATE AND COMPLAINANT:** **1 STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE KOTTIYAM POLICE STATION, KOLLAM DISTRICT. SR.PP. VIPIN NARAYAN** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 17.07.2024, THE COURT ON 22.07.2024 DELIVERED THE FOLLOWING:** 2 ## **Crl.Appeal No.657 of 2006** ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal No.657 of 2006 --------------------------------------------Dated this the 22nd day of July 2024** ## **J U D G M E N T** This appeal under Section 374(2) Cr.P.C. has been filed by the 3[rd] accused in S.C.No.151/2003 on the file of the Court of Session, Kollam challenging the judgment dated 06/03/2006 by which he has been convicted and sentenced for the offence punishable under Section 55(i) of the Abkari Act (the Act). 2. The prosecution case is that on 17/11/1999 at 09:50 a.m., PW4, the then Sub Inspector of Police (S.I.), Kottarakkara and party inspected toddy shop no.T.S.66 in Mevaram of which the first and the second accused are the licensees. In the search conducted, 7 litres of toddy mixed with spirit was found in M.O.1 3 ## **Crl.Appeal No.657 of 2006** container. Necessary sample was taken and the sample and the M.O.1 container sealed, labelled and seized in the presence of PW1 and PW2, the independent witnesses. Ext.P1 mahazar was prepared at the time of seizure. A3, the sales man of the toddy shop, was arrested. Hence the accused are alleged to have committed the offence punishable under Section 55(i) of the Act. 3. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against the 3[rd] accused alone to the Sessions Court concerned as the other two accused were absconding. The court took the case on file as S.C.No.151/2003. On appearance of the accused before the Court of Session, he was furnished with the copies of all the prosecution records. On 07/01/2006 the trial court framed a charge for the offence punishable under Section 55(i) of the Act, which was read over and explained to the accused to which he pleaded not guilty. 4. The prosecution examined PW1 to PW6 and got 4 ## **Crl.Appeal No.657 of 2006** marked Exts.P1 to P8 and M.O.1 on their side. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 5. The accused admitted that he was arrested from the toddy shop in Mevaram. But he was not the sales man of the shop at that time. He was only a customer. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 55(i) of the Act and hence convicted and sentenced him to undergo simple imprisonment for one year and to a fine of ₹1,00,000/- and in default to undergo simple imprisonment for three months. He was also given the benefit of set off under Section 428 Cr.P.C. Hence, the present appeal. 5 ## **Crl.Appeal No.657 of 2006** 7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court is sustainable or not. 8. When the matter was taken up for hearing, there was no representation for the accused/appellant. On the last posting date also there was no representation on his behalf. Hence, relying on the dictums in **Bani Singh v. State of U.P., AIR 1996 SC 2439** and **Ramesan v. State of Kerala, (2020) 3 SCC 45,** this Court proceeds to consider the case on merits after examining the entire records in the case. 9. Heard the learned Public Prosecutor. 10. PW1 and PW2, the independent witnesses admitted their signature in Ext.P1 mahazar but denied having seen the incident. PW3, the then Excise Inspector, Excise Circle Office, Kollam deposed that as requested by the police, he had given Ext.P2 report to the effect that the first and the second accused are the licensees of toddy shop no.T.S.66/99. PW4, the then S.I., 6 ## **Crl.Appeal No.657 of 2006** Kottiyam police station is the person who is stated to have conducted the search and seizure. PW5 the police constable of the said police station deposed that he was present in the team of PW4 when the search and seizure was effected. PW6, the then Assistant Sub Inspector (A.S.I.), Kottiyam police station deposed that on 17/11/1999 he had taken over the investigation of the case, questioned the witnesses and on the basis of the report of PW3, he submitted Ext.P7 report before the court giving the details of the first and second accused in this case. Ext.P8 is the chemical analysis report obtained on examination of the sample taken from the contraband seized. He thereafter completed the investigation and submitted the charge sheet before the court. 11. There are two glaring defects in the prosecution case. One is that no evidence has been let in to show that the sample alleged to have been taken from the contraband seized from the toddy shop was infact forwarded to the laboratory and examined by the chemical analyst on the basis of which Ext.P8 report has 7 ## **Crl.Appeal No.657 of 2006** been given. No forwarding note has been produced in this case. Ext.P6, the property list shows two items had been produced before the court- (i) A 750 ml. sealed bottle containing 500 ml. of toddy mixed with spirit and (ii) a 20 litre container containing 6 ½ litres of toddy mixed with spirit. Both the containers are supposed to have been sealed. However, the specimen seal has not been produced. This Court in **Bhaskaran K. v. State of Kerala, 2020 KHC 5296** has held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the court so as to enable the court to satisfy itself of the genuineness of the sample produced in the court. In **Rajamma v. State of Kerala, 2014 (1) KLT 506** , this Court has held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be 8 ## **Crl.Appeal No.657 of 2006** attached to the chemical analysis report. In **Ramachandran v. State of Kerala, 2021 (1) KLT 793** while dealing with a case in which forwarding note/requisition for sending the sample to the laboratory was not produced and marked, it has been held that the prosecution cannot establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized that eventually reached the Chemical Examiner's laboratory. Further, mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. (See **Vijay Pandey v. State of Uttar Pradesh, AIR 2019 SC 3569** ). 12. The second defect is that the investigation has been conducted and the charge was submitted by PW6, an A.S.I, apparently not an officer empowered to do so. As per notification number SRO.No.321/96 issued under Section 4 of the Act by the 9 ## **Crl.Appeal No.657 of 2006** Government of Kerala, police officers of and above the rank of S.I. in charge of law and order and working in the General Executive branch of the Police Department are Abkari Officers under Section 4 of the Act. Therefore police officers of and above the rank of S.I. alone were conferred with the powers of Abkari Officers to exercise the functions under the Act. This Court, in **Sujith v. State of Kerala, 2016 (3) KHC 823** held that if officers who were incompetent to conduct the investigation conducts the investigation and submits the charge sheet (final report) before the court, then the court will have no jurisdiction to take cognizance of the offences under the Abkari Act based on such investigation. This provision is also seen violated in this case. In these circumstances, the benefit will have to go to the accused. In the result, the appeal is allowed and the conviction and sentence imposed against the appellant by the trial court for the offence punishable under Section 55(i) of the Abkari Act is set 10 ## **Crl.Appeal No.657 of 2006** aside. The accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms